The FAR Council has released updates that will impact a couple aspects of small business contracting. One is that contractors can now file size and socioeconomic status protests for certain types of orders, under strict timelines. Second is that agencies must notify SBA when they seek to remove certain contracts from the 8(a) Program. While these rules were present in some form in SBA rules, they are now firmly ensconced in the Federal Acquisition Regulation as well. Below, I discuss the highlights of these rules as well as any differences from the SBA rules.
Order Protests
Under this proposed rule, the FAR will be updated to clarify requirements for size and socioeconomic status protests in connection with orders placed under multiple-award contracts. The FAR Council notes it is implementing SBA rules stretching from 2013 to 2022. As we know, sometimes it takes a few years for the FAR to be updated, and this is no exception. If you can remember what you were doing back in 2013, more power to you! That was the year the Harlem Shake was big, for those who don’t recall.
At bottom, this rule allows for size and status protests to be filed at only limited times. This type of protest can be filed at two times:
- At the time of award of “orders that are set aside under an unrestricted multiple-award contract.”
- At time of award of “orders placed under multiple-award contracts where the contracting officer requested rerepresentation.”
These rules act as exceptions to the general rule for timing of size protest and status protests. As we’ve discussed with respect to status protests and size protests, the general rule is that a protest is due within 5 business days of when a contractor receives notice of award or learns of the prospective awardee. For instance, for negotiated contracts, a “protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee.” 13 CFR 121.1004.
The SBA rules already contain an exception to the general rule this extended deadline for size and status protests. For instance, SBA rules stated that a protest could be filed within 5 business days of notice of awardee in connection with of either:
- a contract award
- “An order issued against a Multiple Award Contract if the contracting officer requested a size recertification in connection with that order”; or
- Except under GSA Schedules, an order “where the underlying Multiple Award Contract was awarded on an unrestricted basis without a reserve.”
13 CFR 121.1004. The SBA Office of Hearings and Appeals has explained that “the prime contractor of a long-term task or delivery order contract ”is small for each order’ unless a contracting officer chooses to request recertification for a particular order.”
Interestingly, the FAR rule is not as clear as I would like it to be when it comes to protests where the agency requests recertification as part of the order. The SBA rule says that award of an order can be protested where the CO “requested a size recertification.”
The FAR rule does not use the same language, instead mentioning “rerepresentation” in the title of the regulation, but not in the actual text. However, it does refer back to the SBA rules at 13 CFR 121.1004. It seems like if they were going to wait 10 years to implement this rule, they might make it a bit clearer when a protest was authorized. Also, while the SBA refers to it as a recertification, the FAR calls it a rerepresentation. They appear to be the same thing as recertification, but why not use the same word that SBA uses to avoid confusion?
This is a proposed rule and comments close December 4, 2023.
8(a) Follow-On Contracts
This final rule clarifies the notification requirements when a contracting officer decides that a requirement, previously procured under the 8(a) program, is a new requirement and not a follow-on requirement to an 8(a) contract; and when the procuring activity intends to procure a follow-on requirement using an existing limited competition contracting vehicle that is not available to all 8(a) participants and the current or previous 8(a) contract was available to all 8(a) participants.
In particular, the agency must, under FAR 19.815, seek SBA’s approval to release a requirement from the 8(a) Program or if it is using a mandatory source for a procurement. The general rule is that “[o]nce a requirement has been accepted by SBA into the 8(a) program, any follow-on requirements shall remain in the 8(a) program unless there is a mandatory source (see 8.002 or 8.003) or SBA agrees to release the requirement from the 8(a) program in accordance with 13 CFR 124.504(d).”
This is sometimes called the Once 8(a), Always 8(a) rule.
The request must highlight the following items:
(i) Whether the agency has achieved its small disadvantaged business goal;
(ii) Whether the agency has achieved its HUBZone, SDVOSB, WOSB, or small business goal(s); and
(iii) Whether the requirement is critical to the business development of the 8(a) contractor that is currently performing the requirement.
However, there is a strict requirement for when an agency decides that a requirement is a “new” requirement. In that situation, a new procurement is not a follow-on, so it doesn’t have to stay in the 8(a) Program. To meet that standard, though, the agency must provide a written notice to SBA with a “copy of the acquisition plan, if available; performance work statement (PWS); statement of work (SOW) or statement of objectives (SOO); and the values of the existing 8(a) contract(s) and the new contract requirement.” This data is needed so SBA can check if the procurement really is new.
Under SBA rules, a procurement is generally new under the following factors:
(B) Procurements for construction services (e.g., the building of a specific structure) are generally deemed to be new requirements. However, recurring indefinite delivery or indefinite quantity task or delivery order construction services are not considered new (e.g., a recurring procurement requiring all construction work at base X).
(C) The expansion or modification of an existing requirement may be considered a new requirement where the magnitude of change is significant enough to cause a price adjustment of at least 25 percent (adjusted for inflation) or to require significant additional or different types of capabilities or work.
The FAR rule will require the agency to provide information so that SBA can check whether the agency is allowed to move a procurement out of the 8(a) Program, or whether the new procurement exception applies. This rule goes into effect on November 06, 2023.
Conclusion
While these rules were already present in SBA regulations, it is good to see them in the FAR. However, the rules were still valid even though they were only present in the SBA rules for quite some time. Hopefully, this won’t cause confusion for anyone where the language of the FAR and SBA rules do not directly match up.
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